Opinion
1:16-cv-00241-DAD-GSA-PC
05-14-2019
MIGUEL G. SIFUENTES, Plaintiff, v. DR. OLA, et al., Defendants.
ORDER FINDING SERVICE OF FIRST AMENDED COMPLAINT APPROPRIATE AND DIRECTING PLAINTIFF TO INITIATE SERVICE OF PROCESS UPON DEFENDANT OLA WITHIN NINETY (90) DAYS
ORDER DIRECTING CLERK TO SEND PLAINTIFF:
(1) summons for defendant Ola;
(2) the form for "Notice of Lawsuit and Request for Waiver of Service for Summons;"
(3) the form entitled "Waiver of Service of Summons;"
(4) a copy of the First Amended Complaint (ECF No. 21); and
(5) a copy of Rule 4 of the Federal Rules of Civil Procedure
I. BACKGROUND
Plaintiff Miguel G. Sifuentes is a state prisoner proceeding pro se with this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff paid the $400.00 filing fee for this action on February 25, 2016, and therefore is not proceeding in forma pauperis.
This case now proceeds with Plaintiff's First Amended Complaint, filed on April 26, 2017, against defendant, Dr. Ola ("Defendant"), for failure to provide adequate medical care in violation of the Eighth Amendment. (ECF No. 21.) The court finds the First Amended Complaint appropriate for service.
All other claims and defendants were dismissed from this action by the court on May 13, 2019, based on Plaintiff's failure to state a claim. (ECF No. 38.)
II. SERVICE OF PROCESS BY PLAINTIFF
Because Plaintiff is not proceeding in forma pauperis, it is Plaintiff's responsibility to effect service of the summons and complaint on the Defendant. The Clerk of the Court will be directed to issue one (1) summons to Plaintiff for the purpose of service of process. Fed. R. Civ. P. 4.
Plaintiff shall complete service of process in accordance with Federal Rule of Civil Procedure 4 within ninety (90) days from the date of service of this order. Plaintiff shall serve a copy of this order on Defendant Ola together with a copy of the summons and First Amended Complaint. The following two sections contain instructions on how to serve Defendant Ola.
A. Waiver of Service
Pursuant to Rule 4(d)(2), Plaintiff may (but is not required to) notify Defendant of the commencement of this action and request that he waive service of the summons. Fed. R. Civ. P. 4(d)(1). If Plaintiff wishes to do this, he must mail Defendant Ola (1) the form entitled "Notice of Lawsuit and Request for Waiver of Service for Summons," (2) the form entitled "Waiver of Service of Summons," and (3) a copy of the First Amended Complaint. The documents must be addressed directly to the Defendant (not the Attorney General's Office) and must be dispatched (mailed) through first-class mail. The Waiver of Service of Summons form must set forth the date on which the request is sent and must allow Defendant at least thirty (30) days in which to return the waiver to Plaintiff. If Defendant signs and returns the waiver forms /// /// /// to Plaintiff, Plaintiff must then file the forms with the Court. After filing the forms with the Cour, Plaintiff need not take any further steps to serve Defendant. Fed. R. Civ. P. 4(d)(4).
B. Personal Service
If either (1) Plaintiff does not wish to request Defendant to waive service or (2) Defendant fails to return the Waiver of Service of Summons form to Plaintiff, Plaintiff must have personal service effected on Defendant. Defendant must be personally served with a summons and copy of the First Amended Complaint, along with a copy of this order. Plaintiff may not effect personal service himself. Fed. R. Civ. P. 4(c). Service may be effected by any person who is not a party to this action and who is at least eighteen years old. Id. The Court will provide Plaintiff with a copy of Rule 4 along with this order. Plaintiff should review Rule 4(e)(2), which addresses how personal service may be effected. After personal service is effected on Defendant, Plaintiff must file proof of service with the Court. Fed. R. Civ. P. 4(l).
III. CONCLUSION
The Court finds Plaintiff's First Amended Complaint appropriate for service of process. Accordingly, it is HEREBY ORDERED that:
1. Service is appropriate for Defendant DR. OLA;
2. The Clerk is directed to send Plaintiff:
a) One (1) copy of the First Amended Complaint filed on April 26, 2017 (ECF No. 21);
b) One (1) copy of the form entitled "Notice of Lawsuit and Request for Waiver of Service of Summons;"
c) One (1) copy of the form entitled "Waiver of Service;" and
d) One (1) copy of Rule 4 of the Federal Rules of Civil Procedure;
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3. Plaintiff shall complete service of process on Defendant Ola within ninety (90) days from the date of service of this order. Plaintiff shall serve a copy of this order on Defendant at the time of service of the summons and First Amended Complaint; and
4. Plaintiff's failure to timely complete service of the First Amended Complaint on Defendant Ola may result in dismissal of this action. Fed. R. Civ. P. 4(m).IT IS SO ORDERED.
Dated: May 14 , 2019
/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE